Chaired by the Honourable Miss Justice Mary Laffoy

This conference will examine property disputes in both residential property transactions and commercial property transactions. The seminar is designed to alert practitioners to the problems and pitfalls likely to be encountered.

The first section of the seminar will analyse the current position in relation to forfeiture of a commercial lease. The subject matter will be examined from the perspective of a landlord and a tenant. It will look at the variety of situations which may trigger a forfeiture and the various reliefs that are open to a tenant. The law in this area is “fraught with complexity and uncertainty”. Consequently, the issue of forfeiture is one that must be approached by both landlords and tenants with great care. Failure to adhere to proper procedures can result in the loss of the remedy itself or the loss of relief against the remedy. The seminar will alert practitioners to tips and traps in this context.

The final section of the conference will provide practitioners with practical guidance on their rights and remedies when a residential property transaction becomes contentious. These remedies may exist under the contract, at common law or in equity. In particular, the seminar will distinguish between remedies which can be obtained immediately, such as specific performance and interest on the purchase price, and those remedies which only become available once the completion notice has expired, such as recission and damages.
The seminar will also examine the law and practice in relation to “subject to contract” and completion notices with particular reference to the new precedent completion notices.
The matters to be covered at the seminar include the following:

 
Forfeiture of a Commercial Lease
Brian O’Callaghan


Grounds for Forfeiture

  • Difference between breach of covenant and breach of condition and whether forfeiture can be effected in the absence of a specific proviso for re-entry
  • Implications for forfeiture where there is a non-payment of rent or refusal to accept rent
Procedure
  • Form and service of Notice under Section 14 of the Conveyancing Act 1881
  • Content of Forfeiture Notice
  • Impact on guarantors and
  • Impact on sub-tenants.
Effecting Re-Entry
  • What is peaceable re-entry?
  • Is the landlord required to physically re-enter for the purposes of terminating the lease?: (Bank of Ireland v Lady Lisa).
Waiver
  • Can a landlord accept rent "without prejudice" to its right to forfeit?
  • Does the bringing of forfeiture proceedings preclude an act on the part of the landlord being construed as waiving the breach?
Relief against Forfeiture
  • Statutory relief under Conveyancing Act 1881
  • What factors will influence a Court's decision to grant relief?
  • What happens if the landlord has re-entered prior to the tenant applying for statutory relief?
  • Can a tenant seek relief against forfeiture where a landlord obtains possession by re-entering peaceably?
Effective Forfeiture
  • Can it affect only part of a premises?
Court Process
  • Process for obtaining an order for possession if peaceable re-entry is unsuccessful
  • Execution of Court Order and what to do if the tenant refuses to vacate.


Property Disputes in relation to Residential Conveyancing
Suzanne Bainton

Preliminary issues to Consider

  • The role of the Conveyancing Committee in adjudicating on contentious matters involving practice and procedure
  • The implications of the Mediation Act, 2017 for conveyancing disputes
  • Arbitration
Matters arising under the contract
  • When is it appropriate to make time the essence of the contract?
  • Can a vendor rescind a sale where a purchaser raises a requisition which the vendor is unable or unwilling to comply with on the grounds of “unreasonable delay or expense or other reasonable ground”?
  • Is a vendor deprived of the right to rescind where a purchaser maintains a claim for compensation in relation to a “material error”?
  • Is it possible for a purchaser to claim compensation where a vendor delays in completion?
  • Does the right to rescind arise where there is a failure by the vendor to disclose a notice referred to in general condition 35?
  • What defences are available to a vendor where a purchaser attempts to rescind a sale because a declaration of compliance is erroneous or inaccurate?
  • When is a purchaser who has rescinded a contract entitled to interest on the deposit?
  • Is time deemed to be of the essence of the contract when a completion notice is served?
  • What remedies are available to a vendor/purchaser upon service of a completion notice?
  • Can the period of twenty-eight days be extended?
  • Is a vendor deemed to be able, ready and willing to complete where the subject property is charged?
  • What is the position if a vendor cannot give vacant possession at the time of the service of the completion notice?
  • Forfeiture of Deposit and Re-sale of the Property: What happens if, within one year after the closing date, the vendor re-sells the property at a loss? Is the original purchaser liable for the loss? Is the vendor entitled to any increase in the sale price on any re-sale?


A Review of Recent Case Law: “Subject to Contract “and Completion Notices
Mark Tottenham, B.L.


Case Law on Completion Notices

  • The court’s assessment of whether the completion notice is valid and effective: Roche v Leacy
  • Is the service of a completion notice a pre-requisite to bringing proceedings for specific performance?: Collins v Duffy
  • Can a solicitor who has closed a sale on the basis of an undertaking which is not complied with issue a valid completion notice? : O’ Donnell and Another v O Brien
  • Is a vendor entitled to specific performance where an order vacating a lis pendens was made on the date of expiry of the completion notice but the perfection of the order and other relevant formalities had not yet taken place?: Roche v Leacy
  • Must an agreement to extend a completion notice be made before the expiry of that notice in order for time to remain of the essence? : Mac a Bhaird v Commissioner of Public Works
  • Perils in practice: Does a solicitor run the risk of a negligence action for failing to complete a sale following receipt of a completion notice? : Pierse Desmond v NicFhionnlaoich
  • Is a court likely to order damages in lieu of specific performance where a purchaser is unable to perform his contractual obligations and complete the sale following the service of a completion notice? : Park East South East Construction Ltd V Benesch
Case Law: whether contracts for sale are binding in the absence of formal documentation; 
Recent case law in relation to “Subject to Contract”
  • Will a defendant be able to successfully argue that a letter headed “subject to contract/contract denied” “modifies or qualifies “the terms of a subsequent contract? : Tighe v Carey
  • Is a deposit paid during the course of negotiations which do not result in a binding contract, held by the vendor’s solicitor as stakeholder or as agent? : In Re Protim Abrasives Ltd; Wallace v Rooney
  • “Subject to Contract”: Will the use of this rubic preclude the application of the doctrine of proprietary estoppel where specific performance of the contract is sought? : Prunty v Crowley
  • “Materiality of a closing date”: When is agreement on a closing date essential for the existence of a concluded contract? : Globe Entertainment Ltd V Pub Pool Ltd
  • Application of the principles in Mackin v Wilde: Can a defendant rely on the terms of the Statute of Frauds to avoid contractual liability where the plaintiff has acted to its detriment on an assurance given by the defendant? : JLT Financial Services v Gannon